On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1526-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2008

Before Judges Graves and Grall.

Plaintiff Daryl Murray (Murray) appeals from a summary judgment order dismissing his complaint alleging race-based discrimination in hiring and contracting contrary to N.J.S.A. 10:5-12(a),(l), an order denying his motion to amend his complaint to include an allegation of reprisal contrary to N.J.S.A. 10:5-12(d), and an order denying his motion for reconsideration. Defendant Pinnacle Foods Corporation (Pinnacle) and its Director of Information Technology, defendant Donna Wynn (Wynn), cross-appeal from the part of an order denying their application for counsel fees and costs pursuant to N.J.S.A. 10:5-27.1. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

The material facts, viewed in the light most favorable to Murray, are as follows. Murray works as a computer programmer and analyst. Pinnacle is a Delaware corporation engaged in the manufacturing and distribution of frozen foods, with a business office in Cherry Hill, New Jersey. In January 2002, Murray applied for an open position in Pinnacle's information technology department, but another applicant, not a member of a protected class, was selected.

After that unsuccessful application, Murray established Murray Communications, L.L.C. He is its sole principal. On October 12, 2004, Pinnacle retained Murray as a consultant through his LLC. Pursuant to that "Consulting and Confidentiality Agreement" (Agreement), Pinnacle was to pay Murray at the rate of $65 per hour for consulting and technical services. The Agreement stated that Murray was an independent contractor and that either party could cancel the Agreement "at any time by providing the other with fourteen (14) days written notice." Prior to finalizing the Agreement, Murray was interviewed by Wynn at Pinnacle's business office.

On November 8, 2004, Pinnacle terminated plaintiff's agreement with Murray effective that day. On the same day Murray wrote to Tony Hipszer, Pinnacle's Vice President of Information Technology. Although he acknowledged he was terminated because Pinnacle was not satisfied with the progress of his work, Murray disagreed with Pinnacle's assessment of his work and stated Pinnacle had failed to give him proper notice the Agreement would be cancelled:

On November 8, 2004, at or about 4:45 pm, you summoned me to your office to verbally inform me that Pinnacle was terminating the aforesaid contract effective "immediately." You stated that your managers Donna Wynn and Lorna Fisher were not happy with the progress that I had made on the MEI Interface Program and that Donna Wynn did not think that I was capable of helping her team complete the project on time. You further stated that upon the conclusion of our brief informal meeting, you would allow me several minutes to return to my work area, collect my belongings, and sign off from my computer sessions. At which time you would meet me at my assigned cubicle and then escort [me] out of the building. After hearing your verbal termination notice, I immediately expressed to you my respectful disagreement with Donna Wynn's assessment of the status of the program development. In fact, I additionally offered that I had indeed delivered a working program as per the vague specifications given to me to date, and was in the process of completed self defined testing and debugging of the application program in question. I also expressed to you that Pinnacle Foods was now in Breach of Contract as it had violated the "Term" clause of the Agreement by failing to give proper and timely written notice to terminate said contract.

In the same letter, Murray stated Pinnacle's actions were "disrespectful and discourteously unprofessional" and its conduct was harmful to his "professional character and good name." Murray also advised he would be "filing a civil suit to recover both compensatory and punitive damage[s]." There was no mention of race in the letter Murray sent to Pinnacle on November 8, 2004.

In January 2005, after an unsuccessful attempt to negotiate a payment of compensation and damages due on account of Pinnacle's failure to give two-week's notice as required by the Agreement, Murray filed a complaint in Camden County sounding in contract and tort. He did not include a count alleging a violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42.*fn1

In June 2005 and April and June 2006, Murray reapplied for employment with Pinnacle, again without success. In December 2006, Murray filed a second suit in a different venue, Burlington County (Docket No. L-3456-06). In that complaint, Murray charged that another independent contractor had wrongfully acquired his consulting opportunity with Pinnacle and that Pinnacle fraudulently concealed, "withheld, altered and/or destroyed" evidence relevant to the Camden County case. That complaint was dismissed as to Pinnacle on February 2, 2007 and voluntarily dismissed as to the other independent contractor on March 26, 2008.

In June 2007 Murray again submitted his resume in pursuit of employment with Pinnacle, again without success, and he also filed the Burlington County complaint that led to this appeal. The acts of discrimination alleged were based upon Pinnacle's hiring decision in 2002, termination of his consulting agreement on November 8, 2004, and Pinnacle's hiring decisions in 2005 and 2006. Murray's proposed amended complaint, which he was denied leave to file, included a charge that Pinnacle's denial of his application in 2007 was based upon racial discrimination.

On its motion for summary judgment, Pinnacle contended that Murray's claims based upon events up to and including the termination of the consulting agreement were barred by the two-year statute of limitations. With respect to its rejection of Murray's employment applications filed after termination of the consulting agreement, Pinnacle asserted a business reason for those decisions, one of which was Murray's ongoing litigation of claims against Pinnacle.

The trial court ruled Murray's LAD claims based on Pinnacle's failure to hire him in 2002 and his LAD claims resulting from termination of his consulting agreement in 2004 were time-barred. Moreover, because of Murray's "antagonistic approach" following termination of the consulting agreement, the court found that Pinnacle had legitimate business reasons for refusing to rehire him in 2005 and 2006, and that there was insufficient evidence to support an inference that Pinnacle did not act for its proffered nondiscriminatory reasons in 2005, 2006 or 2007.

Murray filed a motion for reconsideration and other relief, and defendants filed a cross-motion for reconsideration of the court's decision denying counsel fees and costs. Both motions were denied on December 10, 2007.

On appeal, plaintiff presents the following arguments:

POINT I

UNDER BRILL, THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW BECAUSE THERE EXISTS GENUINE ISSUES OF MATERIAL FACTS.

THE TRIAL COURT HARMFULLY ERRED IN DECIDING A DISPUTED FACTUAL ISSUE (WHETHER PINNACLE'S PROFFERED EXPLANATION IS PRETEXTUAL OR WHETHER, PINNACLE'S ADMITTED "RETALIATORY DISCRIMINATION" WAS MORE LIKELY THAN NOT A DETERMINATIVE FACTOR IN THE DECISION NOT TO REHIRE OR HIRE PLAINTIFF AGAIN IN THE FUTURE.).

D. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION.

E. PLAINTIFF'S PRETEXT THEORY.

F. DEFENDANTS ADMITTED THEY WERE MOTIVATED BY DISCRIMINATORY INTENT AND PINNACLE ACTED PURSUANT TO A POLICY THAT IS DISCRIMINATORY ON ITS FACE.

G. THERE IS MORE THAN SUFFICIENT EVIDENCE IN THE RECORD TO SHOW THAT PLAINTIFF ENGAGED IN PROTECTED ACTIVITIES.

POINT III

THE COURT ERRED BY FAILING TO CONSIDER WHETHER PLAINTIFF PRESENTED SOME EVIDENCE, DIRECT OR CIRCUMSTANTIAL, FROM WHICH A REASONABLE FACTFINDER COULD CONCLUDE THE DEFENDANTS' PROFFERED REASONS WERE EITHER A POST HOC FABRICATION OR OTHERWISE DID NOT ACTUALLY MOTIVATE THE ADVERSE EMPLOYMENT ACTION.

POINT IV

THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF'S NOVEMBER 2004 REFUSAL TO DEAL CLAIM IS BARRED BY THE 2-YEAR STATUTE OF LIMITATIONS AND BY THE ENTIRE CONTROVERSY DOCTRINE.

POINT V

THE TRIAL COURT ERRED AND MISINTERPRETED THE LAW BY FAILING TO FIND THAT INDEPENDENT CONTRACTORS ARE ENTITLED TO AVAIL THEMSELVES TO THE PROTECTION OF N.J.S.A. 10:5-12(1).

POINT VI

42 U.S.C. § 1981 IS SUBJECT TO A 4-YEAR STATUTE OF LIMITATIONS.

POINT VII

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S CROSS-MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT TO ADD A RETALIATORY DISCRIMINATION CLAIM UNDER N.J.S.A. 10:5-12(D) AND IN GRANTING SUMMARY JUDGMENT, WITH PREJUDICE.

In addition, defendants argue, as they did below, that they are entitled to counsel fees and costs pursuant to N.J.S.A. 10:5-27.1 because plaintiff's complaint was "brought in bad faith." After considering each of these contentions in light of the record, the briefs, and the applicable law, we are satisfied they do not warrant extended discussion in a written decision.

R. 2:11-3(e)(1)(E). We therefore affirm with only the following comments.

The trial court's ruling that plaintiff's 2002 and 2004 claims are time-barred is correct. The statute of limitations for a LAD action is two years. Montells v. Haynes, 133 N.J. 282, 292 (1993). Contrary to Murray's claims on appeal, his evidence did not bring him within the "equitable exception" for a "continuing violation," which requires proof of a pattern of discriminatory acts one of which occurred "within the statutory limitations period." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7 (2002). The doctrine is not applicable to claims of employment discrimination based upon "discrete acts" such as refusal to hire and termination that accrue at the time of the unfavorable action; rather the doctrine applies in the context of a claim a series of actions over time "viewed cumulatively constitute a hostile work environment." Id. at 19, 21. Murray's claims are based on a series of alleged discrete adverse actions, each of which gave rise to a cause of action that accrued at the time taken, and any attempt to show continuity between them is defeated by the undisputed fact that Pinnacle hired Murray as a consultant in 2004.

Next, we consider the claims not barred by the statute of limitations. For the reasons stated by the trial court, we conclude that Pinnacle is entitled to summary judgment on claims based on Pinnacle's actions within the limitations period - i.e., discriminatory or retaliatory refusal to hire in 2005, 2006 and 2007.*fn2

The framework for analyzing a claim of discrimination in the context of employment is as follows:

(1) proof by plaintiff of the prima facie elements of discrimination; (2) production by the employer of a legitimate, non-discriminatory reason for the adverse employment action; and (3) demonstration by plaintiff that the reason so articulated is not the true reason for the adverse employment action, but is instead a pretext for discrimination.

We begin by assuming, without deciding, that Murray made the requisite prima facie showing of discrimination in connection with Pinnacle's decision to give no consideration to the resumes in 2005, 2006 or 2007. That, however, was not enough to permit Murray to prevail on Pinnacle's motion for summary judgment because Pinnacle offered non-discriminatory business reasons for its decision. Among the business reasons offered by Pinnacle was one based upon an undisputed fact - when Murray submitted his applications in 2005, 2006 and 2007 he was, at the same time, pursuing litigation against Pinnacle and its employees. Pinnacle's assertion, in essence, was that it was not in its interest to hire an adversary in ongoing litigation. This asserted business reason was adequate to permit a jury to find "that unlawful discrimination was not the cause of the adverse employment action." Greenberg v. Camden County Vocational and Technical Sch., 310 N.J. Super. 189, 199 (App. Div. 1998). Once confronted with this business reason, which was supported by undisputed evidence of the ongoing litigation, Murray could not withstand Pinnacle's motion for summary judgment without presenting evidence that would "allow a factfinder reasonably to infer that... the employer's proffered non-discriminatory reason[]" was pretextual. Id. at 200 (internal quotations omitted). Thus, Murray was not entitled to a jury trial unless he produced sufficient evidence to support an inference "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).

When viewed in a light most favorable to Murray, the facts are "so one-sided" that defendants are entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Murray did not have any evidence that raised even a suspicion about the plausibility of Pinnacle's asserted business reason. See Greenberg, supra, 310 N.J. Super. at 200 (concluding that a plaintiff needs some evidence showing "implausibilities in the employer's proffered reasons" to withstand a motion for summary judgment). Given Pinnacle's hiring of Murray in 2004 and Murray's repeated submission of his resume after Pinnacle terminated his consulting contract, no reasonable factfinder could determine that Pinnacle's reasons for refusing to rehire Murray were pretextual. Accordingly, we affirm the order granting Pinnacle's motion for summary judgment on Murray's claims of discrimination in hiring in 2005, 2006 and 2007.

Pinnacle was also entitled to a grant of summary judgment on Murray's claim of retaliation prohibited by N.J.S.A. 10:5-12(h).

To establish a cause of action for retaliation under the LAD, plaintiff must prove that he or she engaged in protected activity known to the defendant, that he or she was subjected to an adverse employment decision by the defendant and that there was a causal link between the protected activity and the adverse employment decision. [Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 418 (App. Div. 2001), rev'd in part on other grounds and aff'd on this ground o.b., 174 N.J. 1, 27 (2002)).]

Murray did not allege racial discrimination until he filed this complaint in June 2007. Accordingly, his evidence does not raise a genuine issue of material fact on two essential elements of the retaliation claim. He did not provide evidence that would permit a jury to find that Pinnacle knew he was engaged in protected activity or that there was a "causal link" between "protected activity and the adverse employment decision." Ibid.

Defendants' claim that the court erred in denying counsel fees pursuant to N.J.S.A. 10:5-27.1 lacks merit. Fees are awardable against the plaintiff under this statute only if the court concludes that a matter lacking merit was brought in bad faith. Michael v. Robert Wood Johnson Univ. Hosp., 398 N.J. Super. 159, 167 (App. Div. 2008). That question is one best left to an exercise of the trial court's discretion, and we see no abuse of that discretion in this case.

Affirmed.

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